Citation Nr: 0929925
Decision Date: 08/11/09 Archive Date: 08/19/09
DOCKET NO. 06-05 969 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for tinnitus.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
C. Fields, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 1941 to
December 1946.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a December 2004 rating decision issued
by the Department of Veterans Affairs (VA) Regional Office
(RO) in Nashville, Tennessee.
The Board previously referred this case to the Veterans
Health Administration (VHA) for an opinion as to whether the
Veteran currently has a hearing disability as defined by VA
regulations, including an interpretation of existing
audiograms. An opinion as to the etiology of the Veteran's
hearing loss and tinnitus was also requested. The Board has
received a sufficient response to make a decision on the
Veteran's claims. In a July 26, 2009 letter, the Veteran was
notified of such opinion and given the opportunity to submit
additional evidence or argument within 60 days pursuant to
38 C.F.R. § 20.903. Although no response has been received
and the Veteran has until September 26, 2009 to do so, the
Board finds herein that he is entitled to a full grant of the
benefits sought on appeal. As such, the Veteran will not be
prejudiced by the issuance of a final decision on his claims
at this time.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. Resolving all reasonable doubt in the Veteran's favor,
his current bilateral hearing loss is causally related to in-
service noise exposure.
2. Resolving all reasonable doubt in the Veteran's favor,
his current tinnitus is causally related to in-service noise
exposure.
CONCLUSIONS OF LAW
1. Bilateral hearing loss was incurred during active duty
military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131,
5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R.
§§ 3.303, 3.307, 3.309, 3.385 (2008).
2. Tinnitus was incurred during active duty military
service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A,
5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
As the Board's decision herein to grant service connection
for bilateral hearing loss and tinnitus constitutes a
complete grant of the benefits sought on appeal, no further
action is required to comply with the Veterans Claims
Assistance Act of 2000 and implementing regulations.
The Veteran contends that he is entitled to service
connection for his current bilateral hearing loss and
tinnitus because such conditions are related to his in-
service noise exposure while serving as a gunner aboard the
USS Neshanic.
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In
addition, service connection may be granted for any disease
diagnosed after discharge when all of the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. §
3.303(d).
If a chronic disease is shown in service, subsequent
manifestations of the same disease at any later date, however
remote, may be service connected, unless clearly attributable
to intercurrent causes. 38 C.F.R. § 3.303(b). However,
continuity of symptoms is required where a condition in
service is noted but is not, in fact, chronic or where a
diagnosis of chronicity may be legitimately questioned. Id.
Service connection will be presumed for certain chronic
diseases enumerated in 38 C.F.R. § 3.309, including organic
diseases of the nervous system (such as sensorineural hearing
loss), if they manifest to a compensable degree within one
year after service, even if there is no evidence of such
disease during service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R.
§§ 3.307, 3.309.
Direct service connection may not be granted without medical
evidence of a current disability; medical or, in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and medical evidence of a
nexus between the claimed in-service disease or injury and
the present disease or injury. 38 U.S.C.A. §§ 1110, 1131;
38 C.F.R. § 3.304; see also Duenas v. Principi, 18 Vet. App.
512, 519 (2004).
The auditory threshold for normal hearing is from 0 to 20
decibels, and higher threshold levels indicate some degree of
hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993).
For VA purposes, impaired hearing is considered a disability
when the auditory threshold in any of the frequencies 500,
1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or
when the auditory thresholds for at least three of the
frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26
decibels or greater; or when speech recognition scores using
the Maryland CNC Test are less than 94 percent. 38 C.F.R.
§ 3.385.
When there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see
also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).
As noted above, the Veteran has claimed acoustic trauma due
to in-service noise exposure from his duties as a gunner
aboard the USS Neshanic. He states that he was assigned to
the 20 mm guns and fired them on a near daily basis without
ear or hearing protection. See December 2004 and July 2005
statements; February 2006 substantive appeal. His
representative further states that the Veteran was stationed
next to a 3" gun. See May 2009 brief. The Veteran's Notice
of Separation from U.S. Naval Service indicates that he
served aboard the USS Neshanic as a yeoman, and there is no
indication that he was a gunner. The Board notes that the
Veteran contends in his substantive appeal that he was
engaged in combat, which, if established by the evidence of
record, would entitle him to a presumption that he was
exposed to noise as claimed without the need for further
corroboration, provided that such exposure is consistent with
the circumstances, conditions, and hardships of such service.
See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). While the
evidence of record is unclear as to such fact, the Veteran is
competent to describe the nature and extent of his in-service
noise exposure. See 38 C.F.R. § 3.159(a)(2); Barr v.
Nicholson, 21 Vet. App. 303, 307-08 (2007). Additionally,
the Veteran submitted a statement from a fellow service
member, dated in February 2006, indicating that he served
aboard the USS Neshanic with the Veteran and the Veteran was
a yeoman stationed as a gunner on a 20 mm anti-aircraft gun.
As such, considering all of the evidence as a whole, the
Board finds that the Veteran was exposed to loud noise and
may have sustained acoustic trauma during service.
In addition to his in-service noise exposure, the Veteran has
reported that he had significant post-service noise exposure
while working as an FBI agent for 27 years. However, in
contrast to his in-service noise exposure, the Veteran states
that he always wore ear or hearing protection during his time
with the FBI. See, e.g., February 2006 substantive appeal.
The Veteran's service treatment records are negative for
complaints or treatment for hearing difficulties. Moreover,
his December 1946 separation examination reflects no disease
or defect with respect to his ears and 15/15 hearing in both
ears (whispered and spoken voice). However, the Veteran is
competent to describe the nature and extent of his in-service
hearing difficulties. See 38 C.F.R. § 3.159(a)(2); Barr v.
Nicholson, 21 Vet. App. 303, 307-08 (2007).
Additionally, the Board notes that the Veteran did not seek
treatment for hearing loss or tinnitus until many years after
service. However, VA regulations do not preclude service
connection for hearing loss which first met VA's definition
of disability after service. Hensley, 5 Vet. App. at 159.
As noted above, the Veteran will be entitled to service
connection for such conditions if all of the evidence,
including that pertinent to service, establishes that they
were incurred or aggravated during service. See 38 U.S.C.A.
§ 1113(b); 38 C.F.R. § 3.303(d).
The Veteran began seeing a private otolaryngologist, Dr.
Overholt, with complaints of hearing loss and ringing in the
ears in November 1997. Dr. Overholt noted at that time that
the Veteran reported sudden loss of hearing in the right ear
over the previous several weeks. In September 2004, Dr.
Overholt noted that an audiogram revealed asymmetric hearing
loss in the left ear, which had been known for some time, and
that such hearing loss had previously been attributed to the
Veteran's extensive shooting experience as an FBI agent. In
November 2005, Dr. Overholt opined that the combination of
the Veteran's in-service noise exposure as a gunner and his
post-service noise exposure as an FBI agent resulted in
significant sensorineural hearing loss, worse on the left ear
than the right.
Dr. Overholt's records include audiograms dated in November
1997, September 2004, November 2005, and March 2007, but no
interpretations of such results. The Board is precluded from
interpreting graphical representations of audiometric data.
Kelly v. Brown, 7 Vet. App. 471, 474 (1995). Therefore, the
Board previously referred this case for a VHA opinion as to
whether, based on a review of such audiograms, the Veteran
currently has a hearing disability as defined by VA
regulations. In a July 2009 opinion, a VHA otolaryngologist
opined that the Veteran has progressive sensorineural hearing
loss bilaterally and that such loss meets the VA definition
of a hearing disability in both ears. See 38 C.F.R. § 3.385.
Specifically, he stated that the audiograms demonstrated
progressive moderate loss in the speech frequencies and
profound loss in the higher frequencies in the right ear.
The audiograms also revealed profound hearing loss in the
left ear, which was more rapidly progressive and resulted in
no useful hearing as of the most recent audiogram in March
2007.
The VHA otolaryngologist also expressed an opinion as to the
etiology of the Veteran's current bilateral hearing loss and
tinnitus. He concluded that at least part of the Veteran's
hearing loss and tinnitus in both ears is likely related to
his in-service noise exposure. Specifically, the VHA
otolaryngologist stated that the level of noise exposure
incurred by the Veteran during service could have caused the
hearing loss demonstrated in both ears, and tinnitus is
usually considered a symptom or result of hearing loss. He
further stated that the Veteran's current hearing loss could
be due to noise exposure more than 50 years ago and the
Veteran could have been unaware of the level of hearing
impairment until many years after such exposure. The VHA
otolaryngologist opined that there was no way to determine
whether the Veteran's post-service noise exposure, while
using hearing protection, increased or complicated such
conditions. Additionally, he commented that there appear to
be other medical issues that resulted in a much higher level
of impairment of the left ear, which are not addressed in the
record, but it would be very difficult to determine what
amount of hearing loss was caused by such factors.
Based on the foregoing, the Board finds that the contemporary
medical evidence demonstrates a current bilateral hearing
loss disability as defined by 38 C.F.R. § 3.385. Although
the evidence of record does not include a breakdown of the
puretone thresholds, the Board notes that the audiograms
appear to indicate a hearing disability for VA purposes.
Additionally, as noted above, the VHA otolaryngologist
determined that the Veteran's hearing loss meets the
regulatory definition. The Board further finds that the
evidence of record establishes current tinnitus. Although
the record contains no medical diagnosis of such condition,
tinnitus is readily observable by laypersons and does not
require medical expertise to establish its existence. See
Charles v. Principi, 16 Vet. App. 370 (2002).
The Board further concludes that the competent medical
evidence of record establishes that direct service connection
is warranted for bilateral hearing loss and tinnitus. See
38 C.F.R. § 3.303. As noted above, Dr. Overholt opined that
such conditions are the result of a combination of in-service
and post-service noise exposure. Similarly, the VHA
otolaryngologist concluded that it is likely that such
conditions are at least in part due to in-service noise
exposure. He further concluded that it is impossible to
determine whether the Veteran's post-service noise exposure
increased or complicated such conditions. As such, resolving
all reasonable doubt in the Veteran's favor, the evidence
establishes that his current
bilateral hearing loss and tinnitus are directly related to
service. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.
Therefore, the Veteran is entitled to service connection for
such conditions.
ORDER
Service connection for bilateral hearing loss is granted.
Service connection for tinnitus is granted.
____________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs